September 13, 2005

This morning I caught a few minutes of the Senate Judiciary Committee hearing on the radio. I heard Sen. Arlen Specter (R-PA) and Sen. Pat Leahy (D-VT) asking Judge Roberts all sorts of questions. Correction: they were asking him all sorts of versions of the same question. The question was, to what extent does Judge Roberts accept the principles of stare decisis (Latin for “decided matters”), the notion that the Supreme Court is forever bound by its past decisions. Both senators occassionally istated and repeatedly implied that stare decisis is a critical, crucial, and unquestionable part of the legal process, as if it were in the Constitution itself, and that Judge Roberts ought to make it clear that he would never support overturning a past Supreme Court decision.

Of course, it was abundantly clear from the questions and the examples given that the senators were really interested only in letting past decisions stand for only one particular issue: abortion. The case they repeatedly cited was, of course, Roe vs. Wade.

However, the senators were not so brazen as to ask Judge Roberts directly, “Would you promise right now never to support a ruling that would ever prevent anyone from having an abortion?” That would have been too blatantly political even for senators, and it would have given Roberts too easy and “out,” since judicial nominees are (for the moment, at least) ethically bound not to say in advance how they would rule on specific cases or issues. So instead, they used stare decisis as a stand-in, knowing full well that the current state of Supreme Court decisions is that no abortion can ever be illegal, even moments before birth.

Of course, the senators who so piously declaimed there respect for the principle of stare decisis do not actually believe in that principle at all. I doubt any senator today, except possibly Democrat Robert Byrd, former Grand Keagle of the West Virginia Ku Klux Klan, would support stare decisis when it comes to any of the following decisions:

Plessy v. Ferguson, 1896, in which the Supreme Court ruled that the equal protection requirements of the Fourteenth Amendment could be met by “separate but equal” facilities, and that states had the right to require private companies to separate Blacks and Whites even if they didn’t want to.

Clearly, under the principle of stare decisis, these rulings cannot be overturned by the Supreme Court. Dred Scott v. Sandford was overturned by the Fourteenth Amendment, not by the Supreme Court. It is commonly believed that Plessy v. Ferguson was overturned by Brown v. Board of Education (1954), but a careful — or even casual — reading of the decision shows that the Court was very careful to state only that “Separate educational facilities are inherently unequal” (emphasis added); other than that, they make it clear that Plessy v. Ferguson, “involving not education but transportation” still stands.

If the senators are serious about stare decisis, they should make sure that Judge Roberts will preserve the “rights” of the deferal government to imprison an entire race of people, of state governments to segregate private railroad cars. But of course, they are not serious about stare decisis — nor should they be, for stare decisis guarantees that no injustice perpetrated by a court can never be corrected. They are not serious about stare decisis; it’s just become a code-word for abortion. Why can’t they just admit that they are applying a pro-abortion litmus test?

Obviously, Senator Robert Byrd feels right at home in today’s Democratic Party, just as he did when he founded a local chapter of the Ku Klux Klan as a way of promoting his candidacy for Congress in the Democratic primary in the 1940s.

UPDATE (9/16/05):

Clayton Cramer writes to point out that in Lawrence v. Texas (2003), the Supreme Court overruled its own previous decision in Bowers v. Hardwick (1986). In the 1986 case, the Court ruled that the Constitution did not protect a right to engage in the homosexual act, and in 2003 the Court ruled that the Constitution did protect such a right. It was an out-and-out reversal of a previous Supreme Court ruling. As Cramer put it, “So much for liberal enthusiasm for stare decisis.”

I cannot imagine any consistent theory of stare decisis which would allow the Court to overturn Bowers v. Hardwick but would not allow them to overturn Roe v. Wade.

If you can think of one, please send me an e-mail or post a comment. In the meantime, we have to regard the liberal Senators who defend stare decisis as hypocrites (unless they repudiate Lawrence v. Texas.)